Big Brother at Work

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26 January, 2018

Surveillance and privacy in the work has been under the spotlight recently at the European Court of Human Rights. The cases of Antovic and Mirkovic v Montenegro and Lopez Ribaida & Ors v Spain considered whether video surveillance breached Article 8 of the European Convention on Human Rights.

Article 8 of the ECHR protects individuals right to respect for their private and family life.

In the Antovic and Mirkovic case, the Dean of the School of Mathematics at the University of Montenegro informed the professors that video surveillance has been introduced and that it was in the auditoriums where classes were held. Later a decision was issued which specified that the aim of the measure was to ensure the safety of property and people including students and the surveillance of teaching. It was confirmed that access to data that was collected was protected by codes known only by the Dean and the data were to be stored for a year.

Antovic and Mirkovic complained about this to the Personal Data Protection Agency on the basis that safety was not an issue and in any event there were other means of protecting people and property and monitoring classes. The Agency ordered the University to remove the cameras.

Antovic and Mikovic then brought compensation claims for a violation of their right to private life, notably by the unauthorised collection and processing of data on them. The Domestic Courts ruled against them at first instance and on appeal. The European Court however found that the right to privacy under Article 8 had been breached and although the University is a public sphere, private life encompasses business and professional activities.

In the Lopez Ribalda case the applicants were all working as cashiers for a family owned supermarket chain. The employer notices some irregularities between stock levels and what was actually sold on a daily basis. They installed both visible and hidden cameras. The purpose of the visible cameras was to record customer thefts and they were pointed towards the entrances and exits. The hidden cameras were zoomed in on the checkouts and area behind the cash desk. Notice was given to staff of the visible cameras but not the hidden cameras.

Those accused of theft admitted their involvement and were dismissed. They brought unfair dismissal claims and argued breach of their right to protection of their privacy. The Spanish court held that the measure was justified, appropriate to the legitimate aim pursued, necessary and proportionate. The European Court did not agree found again that Article 8 had been violated on the basis that surveillance in the workplace is an intrusion into private life and this includes personal appearance.

These cases do not however mean that video surveillance in the workplace is no longer possible. Caution must be exercised and it is almost impossible to justify covert surveillance. Employers who have this in place must ensure that employees are explicitly, precisely and unambiguously informed of its existence. In addition, they must been informed how this data will be processed, the purpose for collection and who has access. The scope of the surveillance should be limited and there are guarantees against abuse.

With the introduction of the General Data Protection Regulations in May, employers should consider their surveillance practices carefully and take advice to ensure they are fully compliant.

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